46 PROCTOR | July 2016
CAX001_Ad185x80_v4.indd 1
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presence would have made a difference, so that
the respondent suffered a loss from his breach
of contract – where although its loss of profits
could not be fairly quantified, the respondent was
entitled to damages assessed by reference to its
wasted expenditure, in the absence of evidence
proving that this would more than compensate
for the appellant’s breach – where the respondent
was entitled to an award at least as high as that
which it received by the judgment – whether the
trial judge erred in awarding damages for the
appellant’s breach.
Appeal dismissed. Costs.
State of Queensland v O’Keefe [2016] QCA 135,
31 May 2016
Application for Leave s118 DCA (Civil) – where
a police officer in the internal investigations
branch published a briefing note to a superior
officer alleging misconduct by the respondent
in connection with the investigation of a traffic
accident – where the respondent was stood down
from duty on the same date the briefing note
was published and about 10 months later was
charged with the criminal offence of misconduct
and suspended from duty without remuneration
– where the respondent become aware of the
briefing note when suspended from duty and
about 11 months later received notice from the
prosecution that an indictment would not be
presented – where the respondent applied to
extend the limitation period for commencing a
defamation proceeding in respect of the briefing
note – where during the limitation period of one
year the respondent was addressing the criminal
proceeding related to the alleged misconduct and
his suspension without remuneration – where an
extension of time to commence proceedings for
defamation was granted – whether the primary
judge erred in considering circumstances arising
after the limitation period’s expiration in deciding
whether the test under s32AA Limitation of
Actions Act 1974 (Qld) was satisfied – where the
nature of the test which must be applied by the
court under s32A of the Act was considered in
Noonan v MacLennan [2010] 2 Qd R 537 – where
Keane JA noted at [15] that s32A(2) of the Act
“proceeds on the assumption that there may be
circumstances where it will not be reasonable for
a plaintiff to commence an action to vindicate his
or her legal rights in accordance with the time
limits provided by law” and that “only in relatively
unusual circumstances will a court be satisfied
that it is not reasonable to seek to vindicate one’s
rights in accordance with the law” – where it is
apparent from the reasons that the primary judge’s
conclusion was substantially influenced by the
fact that Mr O’Keefe’s solicitor did not receive
the full brief of evidence relating to the criminal
charge until 28 August 2014 (after the limitation
period had expired) and it was at that time the
solicitor changed his view about the application
of the defence of qualified privilege – where the
primary judge considered the position adopted
by Mr O’Keefe’s solicitors during the limitation
period in the light of what was disclosed after
the expiry of the limitation period in the full brief
of evidence, when the focus should have been
on the circumstances that applied during the
limitation period, in order to evaluate whether
it was not reasonable for Mr O’Keefe to have
commenced the claim for defamation within
that one-year period – where the primary judge
therefore made an error of law by not applying
the objective test under s32A(2) of the Act to
the circumstances that applied to Mr O’Keefe
within the limitation period – whether it was
not reasonable in the circumstances for the
respondent to have commenced the action within
one year of publication – where this fundamental
error of law makes it an appropriate case for
leave to appeal to be granted under s118(3) of
the District Court of Queensland Act 1967 (Qld),
as the limitation period could be extended only if
Mr O’Keefe satisfied the objective test mandated
under s32A(2) of the Act – where in Mr O’Keefe’s
case, however, he was not only faced during
the one-year limitation period with the criminal
charge, but also with the additional pressure of
the suspension from his duties as a police officer
without remuneration – where there was sufficient
overlap between the criminal charge against Mr
O’Keefe and the alleged defamatory statements in
the briefing note that made it objectively justifiable
for Mr O’Keefe to focus his attention on the
criminal charge in conjunction with responding
to his suspension from the Queensland Police
Service, rather than any civil claim for defamation
– where even giving weight to the policy reason
that underpins the limitation period of one year,
Mr O’Keefe has discharged the onus he bears to
show it was not reasonable due to the criminal
charge arising out of the same factual matrix that
resulted in the alleged defamatory statements
in addition to his suspension for him to have
commenced the proceeding for defamation before
the expiry of the limitation period – where it would
not have been reasonable for Mr O’Keefe to
pre-empt the outcome of the criminal proceeding
by prematurely commencing the civil proceeding
for the defamation claim involving much the same
allegations.
Application for leave to appeal granted. Appeal
dismissed. Costs.
Criminal appeals
R v Maksoud [2016] QCA 115, 4 May 2016
Sentence Application – where the applicant
pleaded guilty to unlawful trafficking in,
and possessing, the dangerous drug
methylamphetamine, and possessing phones
used in connection with drug trafficking – where
the applicant was sentenced to 10 years’
imprisonment with a serious violent offence
declaration for the trafficking offence, two years’
imprisonment for the possession of the phones,
and five years’ imprisonment and the issuance
of a drug offence certificate for the possession
offence – where the applicant filed an application
for leave to appeal against sentence, alleging that
the sentence is manifestly excessive – where it is
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